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2015 (3) TMI 795 - AT - Income TaxReopening of assessment - issuance of Notice u/s 148 r.w.s 151(2) - Sanction for issue of notice - Held that - Provisions of sub-section (2) of section 151 of the Act is to be applied for issuing notice under section 148 of the Act and as per sub-section (2) of section 151 of the Act, the Assessing Officer was required to obtain sanction/approval from the Jt. Commissioner of Income-tax and in the instant case, approval/sanction was obtained from the ld. Commissioner of Income-tax. Therefore, we have no hesitation in holding that the sanction accorded by the CIT(A) is not in accordance with law and in such a situation sanction accorded to the Assessing Officer is not valid and hence the Assessing Officer could not assume jurisdiction to issue notice under section 148 of the Act and in that case when the Assessing Officer has issued notice under section 148 of the Act without assuming valid jurisdiction, notice issued under section 148 of the Act is illegal and void ab initio. In the instant case, since notice under section 148 of the Act was issued without obtaining approval from the competent authority, notice issued under section 148 of the Act is invalid and, therefore, the assessment framed consequent thereto is not a valid assessment and void ab-initio. We accordingly set aside the order of the ld. CIT(A) and annul the assessment. Provisions of section 292BB of the Act is not applicable in the present facts of the case, as the issue in dispute is with regard to the validity of jurisdiction assumed by the Assessing Officer for issuing notice under section 148 of the Act.- Decided in favour of assessee.
Issues Involved:
1. Validity of the notice issued under Section 148 of the Income Tax Act, 1961. 2. Jurisdictional authority for sanctioning the notice under Section 148. 3. Classification of capital gains as short-term or long-term. 4. Ex-parte dismissal of the appeal by the CIT(A). 5. Consideration of the statement of income attached with the return. 6. Alleged double addition in the income of the appellant. Issue-wise Detailed Analysis: 1. Validity of the Notice Issued under Section 148: The appellant argued that the notice under Section 148 of the Income Tax Act, 1961, dated 30.03.2010, was issued after obtaining sanction from the Commissioner of Income Tax (CIT) instead of the Joint Commissioner of Income Tax (JCIT). This procedural lapse rendered the assessment order dated 30.12.2010 as "without jurisdiction, illegal, void-ab-initio and liable to be annulled." The Tribunal admitted these additional grounds as they were legal in nature and went to the root of the case. 2. Jurisdictional Authority for Sanctioning the Notice under Section 148: The Tribunal found that the approval for issuing the notice under Section 148 was obtained from the CIT instead of the JCIT, which is contrary to the provisions of Section 151(2) of the Act. It was held that the JCIT is the competent authority to grant approval for such notices. The Tribunal cited its own decision in the case of Jai Prakash Ahuja vs. Income Tax Officer, which held that the assessment framed consequent to an invalid notice under Section 148 is not a valid assessment. The Tribunal further referenced various judgments, including those from the Delhi High Court and Bombay High Court, which supported this view. 3. Classification of Capital Gains: The appellant contended that the authorities erred in treating the addition of Rs. 3,33,795/- as Short Term Capital Gain despite it being shown as Long Term Capital Gain in the return of income. However, since the Tribunal annulled the assessment on jurisdictional grounds, it found no justification to deal with this issue on merit. 4. Ex-parte Dismissal of the Appeal by the CIT(A): The appellant argued that the ex-parte dismissal of the appeal by the CIT(A) without considering and appreciating the facts on record was unjustified. The Tribunal's decision to annul the assessment rendered this issue moot, and thus it was not addressed in detail. 5. Consideration of the Statement of Income Attached with the Return: The appellant claimed that the authorities ignored the statement of income attached with the return for the assessment year 2003-2004. Again, due to the annulment of the assessment, this issue was not further examined by the Tribunal. 6. Alleged Double Addition in the Income of the Appellant: The appellant argued that the addition made in the income amounted to double addition and was arbitrary and unjustified. As the Tribunal annulled the assessment, this issue was also not addressed on merit. Conclusion: The Tribunal annulled the assessment framed consequent to the notice issued under Section 148 of the Income Tax Act, 1961, due to the lack of proper jurisdictional approval, rendering the notice invalid and void ab-initio. Consequently, the Tribunal set aside the order of the CIT(A) and did not address the other issues on merit. The appeal of the assessee was allowed. Order Pronounced: The order was pronounced in the open court on the date mentioned on the captioned page.
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